Labor: The NLRB will not be ignored

For most employers, unless the workforce was already unionized or unionization was an imminent or constant threat, the National Labor Relations Board (NLRB) traditionally had little impact on day-to-day operations or planning. The NLRB's principal purpose is to enforce The National Labor Relations Act (NLRA), which is designed to protect workers who seek to engage in protected, concerted activity. Consequently, the NLRB rarely reached beyond activities that involved workers’ efforts to organize or bargain collectively with their employers.

Recently, however, the NLRB’s agenda has abruptly changed. The NLRB is using the NLRA’s Section 7 right to implement an agenda that directly and significantly affects the nonunionized employer. As these workforces account for more than 90 percent of workers in the U.S., the motivation for the jurisdiction grab is no mystery. The manner in which the NLRB has extended its relevance, however, has been surprising and, to many, far too aggressive.

The NLRB’s self-stated agenda under Acting General Counsel Lafe Solomon is to review employer policies and procedures that “chill” concerted activity. Using these broadly interpreted Section 7 rights, the NLRB has issued rulings that impact all employers (including nonunionized workforces) in areas that range from arbitration agreements to at-will disclaimers in handbooks to social media policies. In each instance, it is the employee’s right to act in concert with other workers in response to employer policies that gives the NLRB its jurisdictional authority.

Although each topic provides independently critical concerns for all employers, it is the NLRB’s aggressive stance on social media policies that has raised the most eyebrows. Solomon issued three memorandums in succession over several months that each invalidated employer policies most employment lawyers would consider routine, and essential case law in NLRB decisions has responded and enforced these opinions.

Among the very common employer policies found to be overbroad is language instructing employees not to post disparaging comments about co-workers or the company on Facebook, Twitter or other social media sites. The NLRB concluded this language is overbroad and could chill employees from lawfully discussing the terms and conditions of employment. Similarly, policy language that requires employees to be “courteous” or “respectful” has been found to violate Section 7 because employees might believe the policy precludes them from criticizing a supervisor or the company. Accordingly, to Solomon’s NLRB, even a disclaimer stating that the policy is not intended to prevent employees from discussing terms and conditions of employment will not save the policy from a finding that it is unlawful.

Against this backdrop, the NLRB has seen an explosion of unfair labor practice charges filed against employers. Many, if not most, are pursued against employers with no prior experience before the NLRB. In some instances, the charges assert wrongful termination based on alleged improper application of the employer’s social media policy. In others, the employee simply challenges the validity of the policy itself. In every case, the NLRB will look closely at whether the employer is violating its policy to preclude employees from discussing terms and conditions of employment with co-workers online. Unless the policies are narrowly constructed and properly limited, many employers will find themselves rehiring employees and rewriting policies with NLRB investigators looking over their shoulders.

The solution is to take these issues seriously and make the necessary preparations before the NLRB knocks on the door. Despite the recent D.C. Circuit opinion invalidating many NLRB rulings due to a procedural flaw in the recess appointment of NLRB members, the board has emphasized it will continue to pursue its agenda. In any context in which an action might be deemed protected and in concert with another employee, every employer must consider whether its response might unlawfully restrict the employee under Section 7 of the NLRA. But with respect to social media activity, an employer simply has to assume any decision to terminate or discipline an employee may end up before the NLRB. Without question, the ability to ignore the NLRB has disappeared for all employers.